I am a bestselling author and a freelance journalist who concentrates on man’s struggle to keep the state in balance with the American dream. My latest book is The Future of the Gun. I am also the author of The Ultimate Man's Survival Guide. My website is www.frankminiter.com. I am a former senior editor at Outdoor Life and a former executive editor for American Hunter (an NRA magazine). I still write for the NRA's publications and I am a "field editor" for American Hunter. This is a purely gratuitous title, but one I'm proud of, as I am a life member of the NRA. I mention all this because Media Matters has been saying I'm secretly an "NRA employee" to attack my credibility on the gun issues. When they can't handle the facts they attack the messenger.

The Second Amendment's Defining Moment

In March 2008 I chatted with a silver-haired law school professor under the marble pillars of the U.S. Supreme Court building. He was very excited. The court was to about hear Heller v. D.C. The case would decide whether the Second Amendment to the U.S. Constitution protects an individual right to own and carry guns. He had 20 law students with him. He said anxiously, “When I put in the paperwork to get seats months ago I didn’t know we’d get to see one of the last unresolved constitutional questions debated.” He said this while looking at a line of people hoping to get seats that went down the block, around a corner and out of sight.

Hours later a mainstream reporter next to me in the press section gasped, “Oh no,” when Justice Anthony Kennedy hinted that he believed the Second Amendment to be an individual right while asking the government’s attorney a question. Months later, when the high court ruled 5-4 that the Second Amendment protects an individual right from government infringement, the media was paying attention. Many, however, are missing what’s happening now. The Second Amendment is having its defining moment in history. The decisions now percolating up to the Supreme Court are deciding what guns the Second Amendment covers, when requirements become infringements and more.

Gun-rights and gun-control groups understand that these court decisions illustrate how much elections matter, as the federal judges making these decisions are nominated by the president and voted on by the senate. However, two recent federal court decisions from judges appointed by former president Bill Clinton show how difficult these decisions can be to handicap.

In one just-decided case, California Senior U.S. District Court Judge Anthony W. Ishii found that “10-day waiting periods of Penal Code violate the Second Amendment” as applied to people who fall into certain classifications. He found this arbitrary wait time “burdens the Second Amendment rights of the plaintiffs.” (The decision can be read here.) This court decision orders the California Department of Justice to allow the “unobstructed release” of guns to those who pass a background check and possess a California license to carry a handgun, or who hold a Department of Justice-issued Certificate of Eligibility and already possess at least one firearm known to the state. Basically, it says if someone already legally has a gun in California the state can’t make that person wait 10 days for a second gun just because it wants to. If that sounds like common sense to you, you’re right, but common sense isn’t a given in the courts.

Brandon Combs, a plaintiff in the case who is also director of the executive director of the Calguns Foundation, said the decision clears the way for them to challenge “other irrational and unconstitutional gun-control laws…. We look forward to doing just that.”

United States Supreme Court building. (Photo credit: Wikipedia)

A flurry of such challenges began right after Heller, led to McDonald v. Chicago (2010) and are still ongoing. In an important example, in February 2014 the Ninth Circuit Court of Appeals confirmed that the Second Amendment protects an individual right to carry firearms for self-defense in public. The decision came in Peruta v. San Diego County. The majority opinion in Peruta said, “We are called upon to decide whether a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense.”

The California Rifle and Pistol Association Foundation brought the case on behalf of five individuals who were denied the right to carry a handgun by the San Diego sheriff. According to California law, a person applying for their Second Amendment right to carry a concealed handgun must: (1) be a resident of their respective city or county; (2) be of “good moral character”; (3) have “good cause” for such a license; and (4) pass a firearms training course. Many rural California counties accept self-defense as “good cause” for a person to get a license to carry a handgun, but some urban sheriffs and chiefs of police disagreed. In those jurisdictions the few who attain permits had to beg, plead, and show imminent danger to their lives before they could exercise their right to bear arms.

The Ninth Circuit decided 2 to 1 that the restrictive “good cause” policy of the San Diego County Sheriff’s Department was unconstitutional. The majority opinion accepted that “the Second Amendment right is ‘not unlimited.’ It is ‘not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.’ Rather, it is a right subject to ‘traditional restrictions,’ which themselves—and this is a critical point—tend ‘to show the scope of the right.’”

The majority decision in Peruta said, “Our reading of the Second Amendment is akin to the Seventh Circuit’s interpretation [in Shepard v. Madigan] … and at odds with the approach of the Second, Third, and Fourth Circuits…. We are unpersuaded by the decisions of the Second, Third, and Fourth Circuits for several reasons. First, contrary to the approach in Heller, all three courts declined to undertake a complete historical analysis of the scope and nature of the Second Amendment right outside the home…. As a result, they misapprehend both the nature of the Second Amendment right and the implications of state laws that prevent the vast majority of responsible, law-abiding citizens from carrying in public for lawful self-defense purposes.”

When circuit courts begin calling each other out on constitutional questions like this, the U.S. Supreme Court usually takes a case to settle the dispute. Perhaps, however, the high court is waiting for the fighting to reach a bigger impasse—if so, another federal judge just gave them a big reason to weigh in.

Gun owners are now perplexed with a ruling by U.S. Federal Judge Catherine C. Blake. She based her ruling that Maryland’s 2013 “assault weapons” ban is constitutional on the premise that these particular semiautomatic firearms are “dangerous and unusual.” She can’t be entirely ignorant of the facts, as the plaintiffs did a very thorough job showing how common and popular AR-15s and other such rifles are with U.S. citizens. Instead her politics seems to have clouded her judicial decision. (You can read her decision here.)

In her 47-page decision Judge Blake systematically presented the facts and then judged them, not by the facts, but by her politics. In Heller v. D.C. (2008) the Supreme Court found that “law-abiding, responsible citizens [have the right] to use arms in defense of hearth and home.” By determining that law-abiding citizens have the right to bear arms, the Supreme Court found that D.C.’s complete ban on handguns, which it said was the class of arms “overwhelmingly chosen by American society for [the] lawful purpose [of self-defense],” infringed on the core principle of the Second Amendment.

Now, in Heller, the Supreme Court also recognized that the right to bear arms is not unlimited—by comparison, neither is the First Amendment’s protections of free speech. What Heller found is that the Second Amendment protects guns that are “in common use” and that are “typically possessed by law-abiding citizens for lawful purposes.”

Judge Blake noted all this but then wrote: “First, the court is not persuaded that assault weapons are commonly possessed based on the absolute number of those weapons owned by the public. Even accepting that there are 8.2 million assault weapons in the civilian gun stock, as the plaintiffs claim, assault weapons represent no more than 3% of the current civilian gun stock, and ownership of those weapons is highly concentrated in less than 1% of the U.S. population.”

She concluded that “assault weapons” are not used for self defense; are frequently used in mass shootings; are more offensive in nature than their fully-automatic military counterparts; and pose a heightened risk to law enforcement and civilians.

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